CASE: THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BASILIO DE JESUS Y JAVIER,, defendant-appellant.

DOCKET NO.: GR NO. L-45198

DATE: OCTOBER 31, 1936
PONENTE: DIAZ, J.
DIVISION: EN BANC

FACTS:
Basilio de Jesus y Javier was convicted by the Court of First Instance of Manila in criminal case
No. 52270 of said court, of the theft of an umbrella and a buri hat valued at P2.65 committed,
according to the information, on April 28, 1936. He was therein sentenced to one month and one
day of arresto mayor with the accessory penalties, to indemnify Francisco Liwanag in the sum of
P2.50 representing the value of the umbrella which was not recovered, and being a habitual
delinquent, the additional penalty of two years, four months and one day ofprision
correccional with the corresponding accessory penalties was also imposed upon him in
conformity with the provisions of subsection 5, paragraph (a), of article 62 of the Revised Penal
Code. Not agreeing with said penalties he appealed from the sentence undoubtedly for the review
of his case.

The appellant's counsel de oficio in this instance, considering the appealed sentence in
accordance with law, recommends the affirmance thereof in all respects in his short brief.

Due to the amount involved, the theft imputed to the appellant is punishable with arresto
mayor in its minimum and medium periods the duration of which is from one month and one day
to four months (art. 309, subsection 6, Revised Penal Code); and the minimum period of said
penalty is from one month and one day to two months. It appears therefrom that the penalty
questioned by the appellant is the minimum period, as no other less penalty could have been
imposed upon him because said penalty in itself already constitutes the minimum limit under the
law. The reasons which prompted the lower court to be lenient with the appellant were
undoubtedly his voluntary confession before the prosecution presented its evidence, which
constitutes a mitigating circumstance (art. 13, subsection 7, Revised Penal Code), and the
apparent absence of all allegation in the information of some aggravating circumstance that may
compensate said mitigating circumstance (art. 63, rule 1, Revised Penal Code).

The imposition of the additional penalty of two years, four months and one day upon the
appellant is justified by his own admission of guilt because the rule is well settled in this
jurisdiction that when one pleads guilty of the crime imputed to him in an information, it is
understood that he admits all the material facts alleged therein (U. S.vs. Barba, 29 Phil., 206;
U.S. vs. Santiago, 35 Phil., 20), not excluding those alleging his former convictions of other
crimes (U.S. vs. Burlado, 42 Phil., 72); and in the information filed against the appellant, it was
alleged:

That the said accused is a habitual delinquent within the purview of rule 5 of article 62 of
the Revised Penal Code, he having been convicted by final judgments of competent
courts of the following crimes: On January 4, 1933, he was convicted of theft and
sentenced to one month and one day of imprisonment, and on November 18, 1935, he
was convicted of qualified theft and sentenced to serve two months and one day of
imprisonment, the date of his last release being January 10, 1936.

ISSUE:
WHETHER OR NOT, THE APPELLANT AS A HABITUAL DELINQUENT,
RECOMMENDS THAT INSTEAD OF AFFIRMING HIS PRINCIPAL PENALTY OF
ONE MONTH AND ONE DAY OF ARRESTO MAYOR, IT BE INCREASED TO THE
MINIMUM OF THE MEDIUM PERIOD OF THAT PRESCRIBED BY LAW FOR HIS
CRIME, OR TWO MONTHS AND ONE DAY OF ARRESTO MAYOR, CONSIDERING
THE AGGRAVATING CIRCUMSTANCE OF RECIDIVISM ESTABLISHED BUT
COMPENSATED BY THE MITIGATING CIRCUMSTANCE OF VOLUNTARY
CONFESSION.

HELD:
We should not lose sight of the fact that when the Legislature incorporated the provision relative
to habitual delinquency into the Revised Penal Code, it was aware this, at least, is the
presumption of law that recidivism was, as it continues to be in the majority of cases to this
date, an aggravating circumstance the effect of which, as the name itself implies, is to aggravate
the criminal responsibility of the delinquent. But unlike other circumstances, as treachery,
evident premeditation, sex, craft, relationship, public position, dwelling, not to mention several
others so as not to be tedious, which may be aggravating, qualifying and inherent as the case may
be, recidivism is and can be nothing else but an aggravating circumstance. This is the general
rule; but as such it certainly is not without its exception as other general rules. The exception is
found in the case of habitual delinquency, as recidivism is precisely one of those that constitute
and give it existence, the other being former conviction, but it is not necessary that both be
present at the same time.

Treachery, evident premeditation and relationship are aggravating circumstances in crimes

against persons and when one of them is present, for instance, in a case of homicide, the crime
committed ceases to be homicide and becomes murder or parricide, as the case may be. In such
cases, that of the said three circumstances which has raised the crime committed from the
category of homicide to that of murder or parricide, ceases to be an aggravating circumstance to
become a qualifying circumstance and, once accepted as such, it cannot, by virtue of the legal
maxim non bis in idem be considered as an aggravating circumstance at the same time (U.
S. vs.Estopia, 28 Phil., 97; U. S. vs. Vitug, 17 Phil., 1; Decision of the Supreme Court of Spain of
November 13, 1871). So must recidivism be considered in habitual delinquency. We have taken
it into consideration in imposing the principal penalty and we cannot again take it into
consideration in imposing the additional penalty because inasmuch as recidivism is a qualifying
or inherent circumstance in habitual delinquency, it cannot be considered an aggravating
circumstance at the same time. Consequently, the additional penalty to be imposed upon the
appellant must be the minimum of the prescribed by law as, with the exception of recidivism, no
other circumstance or fact justifying the imposition of said penalty in a higher period has been
present.

The proposition based on rules 1 and 2 of article 62 of the Revised Penal Code, that if recidivism
is considered an inherent or qualifying circumstance of habitual delinquency it should not be
taken into account in the imposition of the principal penalty, seems to us untenable because it is
based upon the erroneous assumption that the habitual delinquency is a crime. It is simply a fact
or circumstance which, if present in a given case with the other circumstances enumerated in rule
5 of said article, gives rise to the imposition of the additional penalties therein prescribed. This is
all the more true because the law itself clearly provides that the habitual delinquent must be
sentenced to the penalty provided by law for his last crime in addition to the additional penalty
he deserves.lwphi1.nt

In view of the foregoing facts and considerations and furthermore taking into account the
provisions of article 62, rule 5, paragraph (a), of the Revised Penal Code, we deem it clear that
the appellant deserves the additional penalty imposed by the lower court upon him. The penalty
prescribed by said rule is prision correccional in its medium and maximum periods, or from two
years, four months and one day to six years. What was imposed upon the appellant is the
minimum of said penalty and he has absolutely no reason to complain because after all he can
not be exempt from the additional penalty by reason of his admission at the trial that he is a
habitual delinquent, having committed the crime of theft for the third time before the expiration
of ten years from the commission of his former crime.

DISPOSITIVE PORTION:
In resume we hold that the principal penalty of the appellant must be two months and one
day of arresto mayor. We therefore modify the appealed sentence in this sense and so modified it
is affirmed in all other respects, with the costs to the appellant. So ordered.